Military Commissions Just Became More Transparent

The Office of Military Commissions quietly launched a new website this past Monday that was a year in the making. Located at www.mc.mil, it is an invaluable informational site loaded with court documents, historical information, Supreme Court cases dealing with military commissions, and other pertinent and helpful information. In a week when the buzz around Washington was that the case against al Nashiri (the USS Cole bomber held at Gitmo) would be referred to a military commission, the website is a long overdue and potent symbol of transparency in the new and improved military commission process.

A quick history lesson: One of the biggest criticisms of the military commissions process over the years has been its lack of transparency. Critics complained that court documents were not made available before or during trials or guilty pleas; that documents that were made available were provided late and after the fact; and those documents often had large areas of blackened space signifying redactions for national security reasons. The cumulative effect, over the years, was to create the impression that the military commissions process was “flawed” and that the government was intentionally hiding material from the press and public.

This storyline has been repeated around the mainstream press echo chamber so often that it has taken on the veneer of truth.

The fact is that lack of transparency was more a product of institutional constipation, justifiable concerns about the inadvertent release of vital national security information, and most importantly, lack of leadership and vision in the Office of Military Commissions.

One of the key impediments to real time (or even close-in-time) posting of court documents was the inability of the intelligence community to review and approve court documents and filings. Their concerns, justifiable at times, held up the process and were a point of frustration for all involved.

For years, the Department of Defense Public Affairs office had a rudimentary webpage (it would be too generous to call it a website) that listed cases that were active in the military commissions’ process. It was, to say the least, a bare bones effort. By clicking on the name of the defendant (called the “accused” in military courts-martial and military commissions), one would find court documents associated with the case. More often than not, however, the documents were nowhere to be found.

Those following military commissions closely (your author included) would often rely on reporter and Gitmo frequent flyer Carol Rosenberg of the Miami Herald. Over the years, she developed close relationships with those involved in the commissions and detention operation at Gitmo, and was able to post copies of court documents for pending cases.

The idea of a transparent and substantive website is nothing new. Since at least 2006, Pentagon leaders have been encouraging the Office of Military Commissions and the public affairs office to create a robust, informative website. For a variety of reasons, the website never materialized.

That is, until this week.

One of the more interesting aspects to the website is the chart comparing the rules for military commissions with those contained in regular courts-martial and federal court. This is not a new idea, as The Heritage Foundation has had a similar chart since 2007. Heritage’s chart was updated when Congress made slight but necessary changes to a few rules in 2009. The Heritage comparison chart is arguably more valuable, at least for European audiences, as it compares commissions’ rules with those contained in courts-martial AND the International Criminal Tribunal of Yugoslavia (ICTY) and the International Criminal Tribunal of Rwanda (ICTR).

Suffice to say the new website is long overdue. It contains about 85% of the documents related to the cases in the pipeline. It is not perfect, but it is a monumental improvement over the status quo, and it will no doubt be improved. Time will tell whether it can provide real-time documents for pending cases.

More importantly, it is yet another sign that military commissions are marching forward.

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Charles “Cully” Stimson is a leading expert in national security, homeland security, crime control, immigration and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies and the Center for National Defense. Read his research.

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